Docket No. 102225.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

AARON JAMAR HOUSTON, Appellant.

Opinion filed August 2, 2007.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,

and Burke concurred in the judgment and opinion.

Justice Karmeier dissented, with opinion.

OPINION

After a jury trial in the circuit court of Peoria County, defendant

Aaron Jamar Houston was convicted of the offense of armed robbery

(720 ILCS 5/18–2(a) (West 2000)). The circuit court imposed a

sentence of 20 years’ imprisonment. The appellate court affirmed his

conviction and sentence in all respects. 363 Ill. App. 3d 567. We

granted leave to appeal. 210 Ill. 2d R. 315. For the reasons set forth

below, we remand the cause to the circuit court with directions.
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BACKGROUND

The charges against defendant arose from an armed robbery of a

restaurant on July 11, 2002. The case was tried before a jury. Before

trial began, the court inquired of the State and defense counsel as to

their preferences regarding recording of the voir dire of the jury:

“[THE COURT:] Counsel, what do you want to do

relative to having a court reporter take the actual voir dire; do

you wish to have it recorded or not?

[Defense Counsel:] I don’t need it recorded.

[State:] No, People waive.

THE COURT: Then the court reporter will be waived for

the actual taking of the voir dire. [To the court reporter:]

When I read the list of witnesses and put the 12 in the box,

then you’re free to go.

[Defense Counsel:] Judge, subject to coming up–

THE COURT: That’s right, she’ll be available.”

Voir dire commenced without being recorded by the court reporter.

The court went back on the record after the 12 jurors had been picked

to indicate that at that point there was only one prospective juror

remaining as a possible alternate. The court stated that it was too late

in the day to request additional prospective jurors, so either the parties

could agree to go to trial with a single alternate juror if the final

prospective juror was acceptable, or return the following day, pick

two alternate jurors and proceed at that point. Defense counsel and

the State each indicated that it would be acceptable to go to trial with

a single alternate juror. After confirming that this was acceptable to

both parties, the court stated: “Okay. And I take it you continue your

waiving of the court reporter for the voir dire for the alternate?”

Defense counsel and the State each assented, and the court reporter

was again excused. The alternate was apparently deemed acceptable,

and the case proceeded to trial.

At the close of evidence, the jury found defendant guilty of armed

robbery. The trial court then set June 13, 2003, as the date for

posttrial motions and sentencing. On April 24, 2003, defendant sent

the court a handwritten pro se motion for a new trial, which the court

received on April 28. In addition to pointing out alleged

inconsistencies in the testimony that formed the basis of his
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conviction, defendant also complained regarding the composition of

his jury. Specifically, defendant, who is African-American, wrote to

the judge as follows:

“I know you tried to be fair as possible and you was but I felt

a predjudice [sic] and discrimanating [sic] patter[n] going on

with the jury. I’m not predjudice [sic] but I strong feel some

of the jury was. I mean let’s look at it eleven white people and

one black person ***.”

Defendant further alleged, in his pro semotion, that the lone AfricanAmerican juror, a woman, stated during voir dire that she did not

know defendant, but that defendant subsequently learned that this

juror did in fact know him. Defendant alleged, in addition, that the

prosecution wanted this person on the jury because her brother had

recently been murdered. In defendant’s view, she had strong feelings

“about guns and people being shot.”

On May 14, 2003, defense counsel filed a motion for a new trial.

In this motion, defense counsel stated, in relevant part: “That of the

twelve jurors in this cause, there was only one black and when the

court asked said black lady *** if she knew anyone, either the

attorneys or any of the proposed witnesses or the Defendant[,] she

stated she did not know the Defendant[,] but in reality said Defendant

has subsequently learned that said black lady did know him.”

On June 13, 2003, the trial court held the previously scheduled

hearing on the motion for a new trial. During this hearing, defense

counsel emphasized, in particular, the allegation regarding the

African-American juror “who denied, in effect, that she knew anyone,

any of the parties, the Court, or anyone else.” The State responded

that defendant never made this objection during voir dire. The State

added that “there were several peremptory challenges used, at least

seven by the defense; I think six by the State.”

The trial court denied the motion for a new trial. In explaining this

decision, the trial court specifically addressed the claim regarding the

African-American juror who allegedly denied knowing defendant.

The trial court ruled that there was no factual basis for this claim.

After denying the motion for a new trial, the court conducted a

sentencing hearing. During this hearing, the State acknowledged that,

according to the evidence presented at trial, defendant “was not the
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individual that was armed.” The presentence investigation report

indicated that defendant, who was born on November 15, 1984, left

high school in 1999 when he was about 15 years of age. At the

conclusion of the hearing, the trial court sentenced defendant to 20

years’ imprisonment.

Defendant appealed, and a divided appellate court affirmed his

conviction and sentence. 363 Ill. App. 3d 567. The court found that

the evidence was sufficient to uphold defendant’s conviction, found

no reversible error in the fact that the voir dire was not recorded, and

denied defendant’s claim of ineffective assistance of counsel.

In her dissent, Justice McDade pointed to Supreme Court Rule

608(a)(9), which requires that “court reporting personnel *** take the

record of the proceedings regarding the selection of the jury.” 210 Ill.

2d R. 608(a)(9). Justice McDade noted that the failure to record voir

dire in the case at bar ran directly counter to Rule 608(a)(9), which,

in Justice McDade’s view, was mandatory. She stated: “This is a rule

of criminal procedure and, as is the case with all the supreme court’s

rules that fall into that category, it is mandatory; it is a rule of

procedure, not a mere suggestion.” (Emphasis in original.) 363 Ill.

App. 3d at 579 (McDade, J., dissenting). According to Justice

McDade, the cause should have been remanded for a new trial.

ANALYSIS

Before this court, defendant raises two distinct challenges to his

conviction. The first concerns the voir dire proceedings. The second

relates to trial counsel’s failure to submit a jury instruction. With

regard to the voir dire proceedings, defendant contends that (1) his

trial counsel was ineffective for waiving the court reporter during voir

dire, and (2) the trial court improperly allowed voir dire to proceed

with no court reporter present, thereby depriving defendant of due

process. 

We turn first to defendant’s assertions of error during voir dire.

Both of his arguments in this regard concern the failure to record

proceedings in violation of Rule 608 (210 Ill. 2d R. 608).

Preliminarily, we note that article VI of our supreme court rules

governs criminal cases, and within article VI, Rule 608 deals with the

record on appeal. Subsection (a)(9) of Rule 608, which focuses on
 

1Prior to 1986, subsection (9) of paragraph (a) provided only that the

“judgment and sentence” in a criminal case were among the items to be

included in the record on appeal. 87 Ill. 2d R. 608(a)(9). Paragraph (a) was

amended in 1986. As amended, subsection (9) required, among other

things, that court reporters in cases where a sentence of death was not

imposed were “to take notes of the jury-selection proceedings, but the

transcription of such notes [was] required only when requested by a party.”

210 Ill. 2d R. 608, Committee Comments, at cclxvii. Though subsection

(a)(9) has undergone minor modifications since then, it has remained

essentially unchanged.

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voir dire, provides that, in cases where a sentence of death is not

imposed:

“[T]he court reporting personnel *** shall take the record

of the proceedings regarding the selection of the jury, but the

record need not be transcribed unless a party designates that

such proceedings be included in the record on appeal.”

(Emphasis added.) 210 Ill. 2d R. 608(a)(9).1

Rule 608 does not define the terms “record” and “transcribe.”

Webster’sThird New International Dictionary defines “record” as “an

account in writing or print *** intended to perpetuate a knowledge of

acts or events” and, more specifically, “an official contemporaneous

memorandumstating the proceedings of a court of justice.” Webster’s

Third New International Dictionary 1898 (2002). The term

“transcribe” is defined as “to make a written copy of.” Webster’s

Third New International Dictionary 2426 (2002). While Black’s Law

Dictionary appears to conflate the terms “record” and “transcript”

(Black’s Law Dictionary 1279 (7th ed. 1999) (defining “record” as

including a “transcript of the trial or hearing”)), the sense of Rule

608(a)(9) clearly is that “record,” as in “take the record of the

proceedings regarding the selection of the jury,” is to be differentiated

from a transcription. The rule states: “the record [of the proceedings

regarding the selection of the jury] need not be transcribed unless a

party designates that such proceedings be included in the record on

appeal.” 210 Ill. 2d R. 608(a)(9). The plain meaning of the rule is

that, in cases other than those where a sentence of death is imposed,

a record of the proceedings regarding the selection of the jury is to be

taken but that a transcription, or copy, need not be made unless
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requested by a party for inclusion in the record on appeal. Of

necessity, if the voir dire record that Rule 608(a)(9) requires to be

taken must be transcribed, if requested, for inclusion in the record on

appeal, this initial record must be complete enough to be so

transcribed and included. Our construction of Rule 608(a)(9) is in

accord with the previous version of the rule, which stated, in pertinent

part: “the court reporter shall take full stenographic notes of the

proceedings regarding the selection of the jury, but the notes need not

be transcribed unless a party designates that such proceedings be

included in the record on appeal.” (Emphases added.) 177 Ill. 2d R.

608(a)(9).

This court has never dealt expressly with Rule 608(a)(9).

However, People v. Thompkins, 121 Ill. 2d 401 (1988), a case which

was cited to us by the State, has been relied upon by our appellate

court in determining whether the failure to ensure the recording of

voir dire, in violation of Rule 608(a)(9), constituted ineffective

assistance of counsel. People v. Ash, 346 Ill. App. 3d 809 (2004);

People v. Morris, 229 Ill. App. 3d 144 (1992). In Thompkins, we

rejected the defendant’s claim that his counsel was per se ineffective

for failure to insist upon the presence of a court reporter during voir

dire. Citing People v. Steel, 52 Ill. 2d 442, 452 (1972), we concluded

that “the mere failure to obtain the presence of a court reporter during

voir dire does not constitute a per se presumption of ineffectiveness

of counsel.” Thompkins, 121 Ill. 2d at 448. In reaching this decision,

we noted that the criteria for determining incompetency of counsel

are “strict.” Thompkins, 121 Ill. 2d at 447. We explained that, under

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (1984), a defendant arguing ineffective assistance must show

not only that his counsel’s performance was deficient but that the

defendant suffered prejudice as a result. In support of his ineffectiveassistance claim, the defendant in Thompkinspointed to United States

v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984),

which discussed, among other things, “circumstances that are so

likely to prejudice the accused that the cost of litigating their effect in

a particular case is unjustified.” Cronic, 466 U.S. at 658, 80 L. Ed. 2d

667, 104 S. Ct. at 2046. Thompkins concluded that the defendant’s

reliance on Cronic was “in error.” Thompkins, 121 Ill. 2d at 448. The

court explained: “[T]he failure to insist upon the presence of the court
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reporter during a portion of the voir dire proceedings is not such an

extreme and limited circumstance, such as the total absence of

counsel, where prejudice can be presumed.” Thompkins, 121 Ill. 2d

at 448.

This same principle–that prejudice may not be presumed from the

mere failure to ensure the recording of voir dire–is reflected in People

v. Ash, 346 Ill. App. 3d 809 (2004), and People v. Morris, 229 Ill.

App. 3d 144 (1992). In Ash and Morris, also cited to us by the State,

our appellate court followed Thompkinsand concluded that the failure

to ensure the reporting of voir dire, in violation of Rule 608(a)(9),

was not, in and of itself, ineffective assistance. Ash, 346 Ill. App. 3d

at 813; Morris, 229 Ill. App. 3d at 157. We agree with the holdings

in Thompkins, Morris and Ash–and in Steel, also cited to us by the

State–that a waiver of the court reporter for voir dire is not per se

ineffective assistance of counsel, and we hereby reaffirm this

principle.

In the case at bar, defendant, citing to Strickland, argues

ineffective assistance based on his counsel’s waiver of the court

reporter during voir dire. Unlike the defendant in Thompkins,

defendant here does not argue that prejudice should be presumed.

Indeed, defendant in the instant case does not cite to Cronic, which

held that prejudice could be presumed in some instances, such as the

total absence of counsel.

Under the two-prong Strickland test for determining whether

assistance of counsel has been ineffective, a defendant must show that

(1) his counsel’s performance was deficient in that it fell below an

objective standard of reasonableness, and (2) the deficient

performance prejudiced the defendant in that, but for counsel’s

deficient performance, there is a reasonable probability that the result

of the proceeding would have been different. People v. Evans, 209 Ill.

2d 194, 219-20 (2004); People v. Peeples, 205 Ill. 2d 480, 512-13

(2002). In demonstrating, under the first Strickland prong, that his

counsel’s performance was deficient, a defendant must overcome a

strong presumption that, under the circumstances, counsel’s conduct

might be considered sound trial strategy. Peeples, 205 Ill. 2d at 512.

With regard to the second prong of Strickland–the prejudice prong–a

reasonable probability that the result would have been different is a

probabilitysufficient to undermine confidence in the outcome. Evans,
 

2Defendant also alleged that the lone African-American juror, a woman,

stated during voir dire that she did not know defendant, but defendant

subsequently learned that she did in fact know him. This allegation of

personal acquaintance is separate and distinct from defendant’s claim of

racial discrimination in jury selection. We agree with the trial court that

there was no factual basis in the record for defendant’s personalacquaintance allegation, which plays no part in our decision in the case at

bar.

 

3Defense counsel’s motion for a new trial also made no mention of

Batson. This is not surprising, given that, as a result of counsel’s waiver of

the court reporter for voir dire, there was no record of the proceedings

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209 Ill. 2d at 220; Peeples, 205 Ill. 2d at 513. In order to prevail on

a claim of ineffective assistance, a defendant must satisfy both the

performance and the prejudice prongs of Strickland. Evans, 209 Ill.

2d at 220.

As previously noted, defendant’s trial counsel twice waived the

presence of the court reporter during voir dire: first, when the court

asked (before the start of trial) if counsel wanted a court reporter

present and counsel answered that none was needed; and second,

when the court asked the same question (later the same day) regarding

voir dire of the alternate juror and counsel repeated his waiver of the

court reporter.

The result of this waiver was that, contrary to the dictates of Rule

608(a)(9), no record was made of what occurred during jury selection.

In the case at bar, this lack of a voir dire record is consequential. As

previously indicated, defendant complained in his pro se motion for

a new trial about the composition of his jury.2 In that motion, after

noting that there were 11 white persons but only one AfricanAmerican person on the jury, defendant stated: “I felt a predjudice

[sic] and discrimanating [sic] patter[n] going on with the jury.” This

language echoes language in Batson v. Kentucky, 476 U.S. 79, 97, 90

L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723 (1986), which held that it was

a violation of the equal protection clause for the prosecution to use a

peremptory challenge to exclude a prospective juror solely on the

basis of race. Though defendant’s pro se motion made no mention of

Batson,

3

 his complaint about the racial composition of his jury was a
regarding jury selection. Had counsel asserted a Batson claim in his motion

for a new trial, he would ultimately have had to argue his own ineffective

assistance in order to explain the complete lack of a voir dire record with

which to support the claim. In view of this situation, it might have been

advisable for the trial court to appoint different counsel to represent

defendant in his posttrial motion. See People v. Moore, 207 Ill. 2d 68

(2003); People v. Krankel, 102 Ill. 2d 181 (1984). Defendant’s trial took

place over two days in mid-April 2003, and the hearing on defendant’s

motion for a new trial was held on June 13, 2003. Had different counsel

been appointed to represent defendant in his posttrial motion, it likely

would have been a fairly simple matter to reconstruct the record of voir dire

at that time, only two months after trial.

 

4

In its brief to this court, the State does not dispute that defendant’s

complaint about the racial composition of his jury was a Batson claim.

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Batson claim.4 It would be manifestly unfair to require precise legal

reasoning, including citation to authority, in a pro se claim drafted, as

was the instant claim, by an 18-year-old defendant who lacked even

a high school diploma. See, e.g., People v. Smith, 268 Ill. App. 3d

574, 580 (1994) (pro se postconviction petitions are given more

liberal reading than are formal pleadings prepared by counsel).

The difficulty here is that, having raised–or attempted to raise–a

Batson claim, defendant had no voir dire record with which to

support it. According to defendant, the lack of a voir dire record made

it virtually impossible for him to pursue his Batson claim on appeal.

In defendant’s view, “it would not be possible for appellate counsel,

or the appellate court, to assess a Batson issue without a full

recording of the entire voir dire proceedings.” Defendant asserts that

his counsel’s waiver of the court reporter for voir dire satisfies both

prongs of the Strickland test.

Faced with the unusual factual background of this case, we

attempt to determine whether trial counsel’s performance constituted

ineffective assistance. We look first to whether this conduct fell

below an objective standard of reasonableness. As noted, this court’s

rules provide that “the court reporting personnel *** shall take the

record of the proceedings regarding the selection of the jury.”

(Emphasis added.) 210 Ill. 2d R. 608(a)(9). Counsel’s waiving of the

court reporter in the case at bar ran directly counter to Rule 608(a)(9),
 

5While Batson and much of its progeny deal with discrimination based

on race, Batson has been extended to bar “discrimination in jury selection

on the basis of gender.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146,

128 L. Ed. 2d 89, 107, 114 S. Ct. 1419, 1430 (1994).

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which was promulgated precisely to avoid the type of situation we

now face. Here, on appeal, defendant’s appellate counsel expressly

refers to the Batson claim initially raised by defendant at the trial

level. Appellate counsel cannot pursue this claim on appeal, however,

because of trial counsel’s failure to comply with our Rule 608(a)(9).

An examination of the procedure used in assessing Batson claims

illustrates the difficulties resulting from trial counsel’s waiver of the

court reporter. Batson established a three-step process for evaluating

alleged discrimination in jury selection:

“First, the defendant must make a prima facie showing that

the prosecutor has exercised peremptory challenges on the

basis of race. [Citation.] Second, once such a showing has

been made, the burden shifts to the State to provide a raceneutral explanation for excluding each of the venirepersons in

question. [Citation.] Defense counsel may rebut the proffered

explanations as pretextual. [Citation.] Finally, the trial court

determines whether the defendant has met his burden of

demonstrating purposeful discrimination.” People v.

Williams, 209 Ill. 2d 227, 244 (2004).

At the first stage, where the defendant is required to make a prima

facie showing of discrimination, courts are to consider “all relevant

circumstances” in deciding whether such a case has been established.

Batson, 476 U.S. at 96, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. This

court has held that the following are among the relevant factors to be

considered in determining whether the defendant has demonstrated

purposeful discrimination against African-Americans:5

“(1) racial identity between the defendant and the excluded

venirepersons; (2) a pattern of strikes against AfricanAmerican venirepersons; (3) a disproportionate use of

peremptory challenges against African-American

venirepersons; (4) the level of African-American

representation in the venire as compared to the jury; (5) the
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prosecutor’s questions and statements during voir dire

examination and while exercising peremptory challenges; (6)

whether the excluded African-American venirepersons were

a heterogeneous group sharing race as their only common

characteristic; and (7) the race of the defendant, victim, and

witnesses.” People v. Williams, 173 Ill. 2d 48, 71 (1996).

Consideration of several of these factors, particularly the second,

third, fifth and sixth, would be difficult if not impossible without a

record of the voir dire proceedings.

In such circumstances, a defendant–such as defendant here–faces

serious obstacles in establishing a prima facie case of discrimination

at the posttrial stage. It follows that, without a record of the

proceedings during jury selection, the defendant would encounter the

same, or greater, obstacles in pursuing a Batson claim on appeal. The

appellate court would find it just as difficult as the trial court to

review such a claim. For these reasons, counsel’s waiver of the court

reporter in the case at bar falls below an objective standard of

reasonableness. We can conceive of no possible strategic advantage

that might have been gained by waiving the court reporter for voir

dire. Defendant has satisfied the performance prong of the Strickland

test by showing that his counsel’s performance was deficient.

Having concluded that counsel’s performance was professionally

deficient, we turn to the question of whether this conduct resulted in

prejudice to defendant. Under Strickland, a defendant establishes

prejudice by showing that there is a reasonable probability that, but

for counsel’s deficient performance, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Peeples, 205 Ill.

2d at 513; Evans, 209 Ill. 2d at 219-20.

In the case at bar, we cannot say that, as a result of counsel’s

error, there is a reasonable probability that the result would have been

different. We cannot say this because, without a voir dire record–the

absence of which is directly attributable to counsel’s deficient

performance–we have no way of determining the extent to which

defendant was prejudiced. Nevertheless, given the seriousness of

defendant’s claim of racial discrimination in jury selection, we are

reluctant simply to deny defendant all relief based solely on our

inability, because of the lack of a voir dire record, to determine the
 

6The defendant’s conviction and sentence were subsequently affirmed

on direct appeal in state court, and his petition for habeas corpusrelief was

denied by the federal district court. The defendant appealed, and the court

of appeals concluded that the defendant’s Batson claim of discrimination

in jury selection could not be reviewed effectively “without a transcript of

the voir dire to allow the reviewing court to examine whom the assistant

prosecutor excluded and why.” Simmons, 44 F.3d at 1168. The court

emphasized “the seriousness” of the Batson claim, and remanded for the

granting of habeas relief unless the State agreed to retry the defendant

before a properly selected jury. Simmons, 44 F.3d at 1167-68, 1171.

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extent of the prejudice suffered by defendant. In our view, a middle

course is preferable.

In Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995), as a result of

the delay between the defendant’s conviction and his direct appeal in

state court, portions of the trial record, “including a lengthy in camera

voir dire of prospective jurors,” were missing. Simmons, 44 F.3d at

1164. Faced with this situation, the state appellate court “remanded

the case for the limited purpose of reconstructing the record, and the

judges who had presided over the jury selection and the remainder of

the trial and sentencing held reconstruction hearings.” Simmons, 44

F.3d at 1164.6 Similarly, in In re Taylor, 272 Wis. 2d 642, 679

N.W.2d 893 (App. 2004), also a Batson case, the proceedings on voir

dire were not recorded. On remand, the trial court in Taylor held a

hearing “at which the voir dire process was ‘reconstructed’ from

testimony of the assistant district attorney and defense counsel,

handwritten notes, and a jury panel roster.” Taylor, 272 Wis. 2d at

648, 679 N.W.2d at 896.

Finally, in People v. Hudson, 195 Ill. 2d 117 (2001), this court

remanded a Batson gender-discrimination case to the circuit court for

a hearing to determine if the defendant, who had failed to raise the

gender-discrimination claim in his direct appeal, had shown the

necessary prejudice to excuse his procedural default. The defendant

in Hudson, who was initially sentenced to death, had raised a Batson

race-discrimination claim at the trial level and on direct appeal, but

this claim was rejected. While the defendant’s petition for certiorari

was pending before the United States Supreme Court, that court

decided J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d
 

7

In attempting to show, at trial, that the reasons for excluding the

venireperson were race-neutral, the State had articulated a potentially

gender-related reason.

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89, 114 S. Ct. 1419 (1994), which extended Batson to prohibit gender

discrimination in jury selection. The defendant in Hudson filed a

postconviction petition in which he claimed, relying on J.E.B., that a

female African-American venireperson who had been struck by the

State had been excluded on the basis of gender.7 Because the

defendant had failed to raise this gender-discrimination claim in his

direct appeal, this court conducted a cause-and-prejudice analysis to

determine if the defendant’s forfeiture of the claim would be excused.

We concluded that the defendant had shown cognizable cause for his

failure to raise the claim earlier. However, we also concluded that “an

evidentiary hearing [was] needed in order to determine if defendant

ha[d] established the needed prejudice to excuse the procedural

default.” Hudson, 195 Ill. 2d at 127. We stated: “without findings

from such a hearing, it is impossible to determine whether defendant

has established the requisite prejudice.” Hudson, 195 Ill. 2d at 137.

We therefore remanded the cause to the circuit court for a hearing to

determine if the State would have struck the African-American

female “even in the absence of any gender-related reasons.” Hudson,

195 Ill. 2d at 136-37. We noted that, if the hearing demonstrated that

the State would have struck the venireperson even in the absence of

the gender-related reason, the defendant could not be said to have

established prejudice and his claim should be denied. If, on the other

hand, the State was unable to prove this proposition, the defendant

would have met his burden of showing prejudice and relief should be

granted.

The appropriate solution in the case at bar, similar to Simmons,

Taylor and Hudson, is to remand this cause to the circuit court for a

hearing to reconstruct the voir dire record. We adopt this course,

rather than simply denying defendant relief, out of concern for the

seriousness of defendant’s race-discrimination claim. See Simmons,

44 F.3d at 1168 (remanding for the granting of conditional habeas

relief after noting “the seriousness” of the defendant’s Batson claim

and the court’s inability to review the claim absent a transcript of the

voir dire proceedings). As the Court in Batson explained, “[t]he core
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guarantee of equal protection, ensuring citizens that their State will

not discriminate on account of race, would be meaningless were we

to approve the exclusion of jurors on the basis of such assumptions,

which arise solely from the jurors’ race.” Batson, 476 U.S. at 97-98,

90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In this instance, given the risk

that a denial of relief might amount to such approval, we choose to

remand the cause simply to determine whether sufficient information

about the voir dire may be gathered to ensure that racial

discrimination in jury selection is not condoned by this court.

We emphasize the limited scope of our decision. We do not

conclude that the failure to obtain the presence of a court reporter

during voir dire creates, in itself, a per se presumption of ineffective

assistance of counsel. People v. Thompkins, 121 Ill. 2d 401, 448

(1988). Nor do we conclude that the mere failure to record voir dire,

without any claim of error in the jury selection process, requires a

remand for reconstruction of the jury-selection proceedings. See, e.g.,

People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003). This is not to

say, however, that our rules are unimportant. We point out that the

difficulty presented in the case at bar could have been avoided had the

trial judge simply followed the mandate of Rule 608(a)(9). This court

has often noted that our rules are not mere suggestions. Rather,

“[t]hey have the force of law, and the presumption must be that they

will be obeyed and enforced as written.” Bright v. Dicke, 166 Ill. 2d

204, 210 (1995). The situation here confronting us illustrates the

importance of our rules and the need for compliance with them.

We hold that where, as in the unusual case before us, a defendant

attempts to raise in the trial court a Batson claim of discrimination in

jury selection, and the claim may not be pursued because trial counsel

waived the presence of the court reporter for voir dire, in violation of

our Rule 608(a)(9), resulting in the absence of a voir dire record, the

appropriate course, in the first instance, is to remand to the circuit

court for an attempt to reconstruct the record of the proceedings

regarding the selection of the jury.

The dissent criticizes this approach as “ill conceived” and argues

instead that we should simply affirm. Affirmance in this instance

would do nothing to address the difficulty, clearly illustrated in the

case at bar, that results from noncompliance with Rule 608(a)(9). The

dissent itself recognizes the need for such compliance. The dissenting
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justice notes, as do we, that our rules, including Rule 608(a)(9), are

not mere suggestions but rather have the force of law. The dissenting

justice adds, again agreeing with us, that “the presumption must be

that [our rules] are to be obeyed and enforced as written.” Slip op. at

24. However, the dissent’s only answer to the difficulty presented by

noncompliance with Rule 608(a)(9) is that we should “amend the

rule’s provisions to include appropriate consequences for failure to

follow it.” Slip op. at 24. This might be an appropriate remedy for

future cases, but our task here is to address the case that is actually

before us. In this instance, as we have stated, the proper course is to

remand to the circuit court for an attempt to reconstruct the voir dire

record. This is far preferable to the affirmance approach urged by the

dissent,which amounts to acquiescence in the face of noncompliance.

Because of our disposition of this case, we need not address, at

this time, defendant’s other claims that (1) the trial court improperly

allowed voir dire to proceed with no court reporter present, thereby

depriving defendant of due process, and (2) trial counsel failed to

tender a jury instruction on identification, thereby rendering

ineffective assistance.

A number of cases cited by the State held that a trial court’s

failure to provide a court reporter during voir dire was not a violation

of due process. People v. Ash, 346 Ill. App. 3d 809, 813 (2004);

People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003); People v.

Morris, 229 Ill. App. 3d 144, 156 (1992); People v. McClurg, 195 Ill.

App. 3d 381, 388 (1990). Because we do not address defendant’s due

process claim, we need not consider these cases’ conclusions

regarding this issue.

Pursuant to this court’s supervisory authority, we retain

jurisdiction and remand this cause to the circuit court of Peoria

County for a hearing to reconstruct the voir dire record. This

reconstructed record shall be filed with the clerk of this court within

90 days of the date that this decision becomes final.

CONCLUSION

The cause is remanded to the circuit court with directions to hold

a hearing to reconstruct the record of the voir dire proceedings which

took place at trial.
-16-

Cause remanded with directions.

JUSTICE KARMEIER, dissenting:

In this case we are called upon to construe Supreme Court Rule

608(a)(9) (210 Ill. 2d R. 608(a)(9)). When interpreting supreme court

rules, our court is guided by the same principles applicable to the

construction of statutes. In re Estate of Rennick, 181 Ill. 2d 395, 404

(1998); 134 Ill. 2d R. 2(a) & Committee Comments. With rules as

with statutes, our goal is to ascertain and give effect the drafters’

intention. In re Storment, 203 Ill. 2d 378, 390 (2002). The most

reliable indicator of intent is the language used, which must be given

its plain and ordinary meaning. Robidoux v. Oliphant, 201 Ill. 2d 324,

332 (2002).

The language of the rule at issue here provides that, in cases not

involving a death sentence, “court reporting personnel *** shall take

the record of the proceedings regarding the selection of the jury.”

(Emphasis added.) 210 Ill. 2d R. 608(a)(9). Generally, use of the term

“shall” indicates an intention to impose a mandatory obligation.

People v. Thomas, 171 Ill. 2d 207, 222 (1996). There is no reason to

ascribe a different meaning to the term here. The circuit court was

therefore under an obligatory duty to have the jury selection

proceedings recorded.

The more difficult question posed by this appeal is what, if any,

consequences should flow from the fact that the dictates of Rule

608(a)(9) were not followed. This is a separate and distinct inquiry.

As our court endeavored to explain in People v. Robinson, 217 Ill. 2d

43, 51-54 (2005), it is one thing to hold that a governmental entity is

under an obligatory duty which it is required to perform, as opposed

to a permissive power which it may exercise or not as it chooses. It is

something else entirely to hold that the entity’s failure to comply with

its obligation should invalidate the action to which that obligation

relates. The former inquiry concerns what has been described as the

mandatory-permissive dichotomy. The latter, and the one which

concerns us now, is the so-called mandatory-directory dichotomy.

People v. Robinson, 217 Ill. 2d at 51-53;O’Brien v. White, 219 Ill. 2d

86, 96 (2006). Whether a statutory command is mandatory or

directory presents a question of law, which we review de novo.
-17-

O’Brien v. White, 219 Ill. 2d at 97. The same is true where, as here,

the command is rule-based.

While use of the word “shall” normally denotes that something is

mandatory when dealing with the mandatory-permissive dichotomy,

the term is not determinative when, as in this case, the mandatorydirectory dichotomy is at issue. People v. Robinson, 217 Ill. 2d at 53-

54. The court must look instead to other factors. In assessing whether

a requirement should be read as mandatory rather than directory, a

court should consider whether the authors of the requirement

specified what should happen if the requirement is not met. When a

provision expressly prescribes a consequence for failure to obey its

terms, that is strong evidence that the requirements of the provision

were intended to be mandatory. People v. Robinson, 217 Ill. 2d at 54.

No such prescription was made here. Neither Rule 608(a)(9) nor

any other subpart of Rule 608 specifies what, if anything, should

happen when the voir dire is not recorded in a noncapital case. That

does not necessarily preclude the conclusion that the rule’s provisions

are mandatory and not merely directory. In People v. Campbell, 224

Ill. 2d 80 (2006), for example, this court found that the trial court’s

failure to comply with the provisions of Supreme Court Rule 401(a)

(134 Ill. 2d R. 401(a)), dealing with waiver of counsel, rendered the

defendant’s conviction fatally infirm. There, as here, the rule

contained no language specifying what would happen if the

requirements of the rule were not followed. The committee comments

to the rule, however, indicate that it had been amended to conform to

the United States SupremeCourt’s decision in Argersinger v. Hamlin,

407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). As stated in the

committee comments, that case held that under the United States

Constitution, no imprisonment may be imposed unless the defendant

was represented by counsel or has made a knowing and intelligent

waiver of his right to counsel. By referencing this authority, the

drafters of the rule implicitly recognized that there would be a

consequence for noncompliance, a very serious one. In light of that

constitutionally based consequence, setting out the repercussions of
 

8Although the analysis in Campbell purported to rely on the language of

Rule 401(a) rather than the underlying constitutional principles governing

the right to counsel, the constitutionally based consequences of

noncompliance are essential to the result it reached. If the existence of such

consequences were absent from the analysis and the case rested solely on

the text of the rule, it could not be squared with the analytical framework

we set forth in People v. Robinson for understanding the mandatorydirectory dichotomy, nor could it be reconciled with decisions such as

People v. Henderson, 217 Ill. 2d 449 (2005), where we held that failure to

comply with the admonitions required by Supreme Court Rule 605(a),

which also employed the word “shall,” did not automatically require

reversal and remand in every instance.

-18-

noncompliance separately was unnecessary.8

No similar circumstances are present in this case. The courts of

Illinois have consistently rejected the claim that the failure to record

voir dire violates constitutional protections. See, e.g., People v.

McClurg, 195 Ill. App. 3d 381 (1990). In contrast to People v.

Campbell, the absence in Rule 608(a)(9) of an express consequence

for failure to comply with its provisions therefore cannot be attributed

to the fact that a constitutionally based remedy is available.

I do not see and the majority opinion has not identified any other

factors that would support a conclusion that failure to comply with

the recording requirement of Rule 608(a)(9), in and of itself, renders

the subsequent trial invalid. Under the mandatory-directory

dichotomy our court has articulated, the rule’s recording requirement

is therefore directory. As such, it may be waived by the parties. See,

e.g., In re Estate of Zander, 242 Ill. App. 3d 774, 777 (1993).

That the recording requirement may be waived is further

supported by comparison to other situations in which waiver is

permissible. The courts of Illinois have recognized that criminal

defendants may waive such rights as the right to a speedy trial

(People v. Laws, 200 Ill. App. 3d 232, 235 (1990)), to counsel

(People v. Haynes, 174 Ill. 2d 204, 235 (1996)); to a jury of 12

(People v. Barrier, 359 Ill. App. 3d 639, 642 (2005)); to confront

witnesses against them (People v. Campbell, 208 Ill. 2d 203 (2003));
-19-

and to be free from double jeopardy (People v. Dieterman, 243 Ill.

App. 3d 838, 843 (1993)). All of these rights are more significant

than the right to have jury-selection proceedings recorded. If they can

be waived, the right to have jury-selection proceedings recorded must

likewise be subject to waiver. Any construction of Supreme Court

Rule 608(a)(9) that would yield a contrary result would, in effect,

confer greater protection on the right to have jury selection recorded

than it would on the right to be tried by a jury. Such a result is absurd.

We must therefore reject it. See In re Loss, 119 Ill. 2d 186, 194

(1987) (a rule, like a statute, must be construed to avoid an unjust

result).

There is no dispute that a waiver of the recording requirement was

made in this case by both the defendant and the State. Having waived

strict compliance with Supreme Court Rule 608(a)(9), defendant

cannot now assert that the failure to have the jury-selection procedure

recorded pursuant to Rule 608(a)(9) was reversible error. To hold

otherwise would require us to ignore the well-established principle

that a party may not complain of error where doing so is inconsistent

with the position he took in the earlier court proceeding or where the

alleged error is one to which he consented. McMath v. Katholi, 191

Ill. 2d 251, 256 (2000).

The failure of trial counsel to insist on the presence of court

reporting personnel during voir dire is not a novel circumstance. It

has been considered by the courts in Illinois on at least six previous

occasions. None of those decisions support the majority’s resolution

of the case before us today.

People v. Steel, 52 Ill. 2d 442, 452 (1972), was decided by our

court over 30 years ago. In an argument that echoes the one made on

appeal in this case, the defendant in Steel contended that his trial

counsel was incompetent for failing to insist upon the presence of a

court reporter during voir dire because, among other things, that

failure precluded defendant from establishing that the jury may have

been prejudiced against him. We rejected that argument, noting that

there, as here, a court reporter was always available and could have

been summoned at any time.

A similar situation was present in People v. Thompkins, 121 Ill.

2d 401 (1988). The defendant there also maintained that the

performance of his court-appointed counsel was ineffective based, in
-20-

part, on the lawyer’s failure to insist upon the presence of a court

reporter during voir dire. According to the defendant, the failure to

record jury selection was prejudicial because it “preclud[ed] his

appellate counsel from raising any potential issues regarding

improper excusal of prospective jurors.” People v. Thompkins, 121

Ill. 2d at 447. Citing our previous decision in People v. Steel, 52 Ill.

2d 442 (1972), we rejected that contention, holding that the mere

failure to obtain the presence of a court reporter during voir dire does

not constitute a per se presumption of ineffectiveness of counsel. We

further ruled that counsel’s failure to insist upon the presence of the

court reporter during a portion of the voir dire proceedings was not

such an extreme and limited circumstance, such as the total absence

of counsel, that prejudice could be presumed. People v. Thompkins,

121 Ill. 2d at 448.

The issue next arose in People v. McClurg, 195 Ill. App. 3d 381

(1990), in which the defendant appealed her conviction for driving

under the influence of alcohol. Prior to the commencement of the

trial, the court had advised the defendant that there were not enough

court reporters to make one available during jury selection, but that

a reporter would be available later so that a record could be made. In

assailing her conviction, the defendant included among her numerous

arguments that the failure of the trial court to provide a court reporter

during voir dire deprived her of the ability to preserve her objections

for review and denied her right to due process. The appellate court

rejected that contention, noting that the rules of our court clearly

provide alternative methods for preserving the record where no

verbatim transcript is available. In the appellate court’s view,

defendant could have availed herself of those rules and submitted a

bystander’s report or agreed statement of facts. Because she failed to

do either, the court concluded that she had waived any argument

concerning the sufficiency of the record and the propriety of the trial

court’s rulings during voir dire. People v. McClurg, 195 Ill. App. 3d

at 388.

McClurg was followed by People v. Morris, 229 Ill. App. 3d 144

(1992), authored by former Chief Justice McMorrow shortly before

she was elected to our court. In that case, which involved a felony

prosecution, the court made some preliminary remarks to the initial

group of prospective jurors. It then asked defense counsel and the
-21-

prosecutor to step forward to the bench and stated the following:

“ ‘The court reporter informed me she has an appointment

with her doctor. Would you please excuse her for the

impaneling of the jurors? Before doing that would all of the

perspective [sic] jurors raise their right hands please.

(WHEREUPON THE JURORS WERE SWORN IN.)

THE COURT: Ms. Reporter, you are excused.’ ” People

v. Morris, 229 Ill. App. 3d at 154-55.

The court reporter was then excused while voir dire was conducted.

That was the only portion of the proceedings for which she was

absent. Court reporting was thereafter resumed for opening

statements by the State and defense counsel, as well as for the

remainder of defendant's trial. Defendant was subsequently found

guilty and sentenced to a term of imprisonment.

On appeal, defendant claimed that the trial court committed

reversible error when it permitted jury selection to take place without

transcription by a court reporter. Following the approach taken in

McClurg, the appellate court rejected this argument, holding that

defendant could have obtained a bystander's report or an agreed

statement of facts as permitted under the rules of our court and that

his failure to do so precluded him from asserting that the court's

ruling was reversible error. People v. Morris, 229 Ill. App. 3d at 156.

In a related argument, the defendant further contended that his

attorney was ineffective for having agreed to excuse the taking of voir

dire by a court reporter. The appellate court rejected this argument as

well. Citing our decision in People v. Thompkins, 121 Ill. 2d 401, 448

(1988), it held that defense counsel's failure to obtain the presence of

a court reporter for voir dire does not create a per se presumption of

ineffective assistance of counsel. To prevail on a claim that the

attorney was ineffective, the defendant was required to point to some

error in selection of the jury. The court further held that it was

incumbent upon the defendant, as appellant, to obtain a bystander's

report, or stipulated statement of facts, in lieu of a verbatim transcript

of the voir dire. The court concluded that in the case before it,

defendant had failed to satisfy these burdens. He was unable to

specify any particular error that occurred during jury selection and

failed to procure a bystander's report or stipulated statement of facts
-22-

regarding jury selection. As a result, the court rejected defendant’s

claim that he was entitled to a new trial. People v. Morris, 229 Ill.

App. 3d at 156-57.

People v. Culbreath, 343 Ill. App. 3d 998, 1005-06 (2003), is in

accord. In that case, the defendant was tried on two counts of

aggravated battery. On the first day of the trial, the presiding judge

asked counsel for defendant and the State if either party wanted a

court reporter to be present to record the voir dire. The State

responded in the negative. Counsel for defendant indicated that he

would be willing to waive the presence of a reporter, subject to the

understanding the reporter would be nearby in case a record of

something needed to be made. The court then excused the court

reporter and proceeded with jury selection. A court reporter was

present for the remaining proceedings in the case.

Defendant was ultimately convicted, sentenced to a term of

imprisonment and ordered to pay restitution to his victim. People v.

Culbreath, 343 Ill. App. 3d at 1001. On appeal, defendant raised

various grounds for assailing the judgment. Among these were: (1)

that by conducting voir dire of prospective jurors without a court

reporter present to transcribe the proceedings, as required by Supreme

Court Rule 608(a)(9) (177 Ill. 2d R. 608(a)(9)), the trial court had

violated his right to due process; (2) the failure to have a court

reporter present to transcribe voir dire resulted in the denial of his

right to effective assistance of appellate counsel; and (3) his trial

counsel did not have the authority to waive the court reporter's

presence at voir dire because that decision belonged to defendant

alone. People v. Culbreath, 343 Ill. App. 3d at 1005.

The appellate court rejected all these arguments. Following

McClurg and Morris, it reiterated the principle that the failure to

provide a court reporter during voir dire does not deprive a defendant

of due process. It further held that because the rules of this court

provide alternate means for preserving the record and because the

defendant failed to avail himself of those options, defendant was

precluded from arguing that the court’s failure to provide a court

reporter during voir dire constituted reversible error. People v.

Culbreath, 343 Ill. App. 3d at 1006.

Finally, the appellate court concluded, based on precedent from

this court, that the decision to conduct voir dire without a court
-23-

reporter present was not among those which must be made personally

by the defendant. That decision, in the appellate court’s view, could

be made by defense counsel. In so ruling, the appellate court rejected

the notion that defense counsel’s waiver of the court reporter’s

presence for voir dire creates an inherent conflict of interest by

creating a situation in which counsel could prevent the defendant

from raising claims against him. The reason the waiver does not

create a conflict is that it does not, in fact, preclude a defendant from

challenging his attorney’s conduct during voir dire. As previously

indicated, a defendant may substantiate claims of ineffective

representation pertaining to voir dire by means of a bystander’s report

or an agreed statement of facts. Neither of those options was

attempted by the defendant in that case. People v. Culbreath, 343 Ill.

App. 3d at 1007-08.

 The sixth and most recent case, People v. Ash, 346 Ill. App. 3d

809, 812-14 (2004), was decided the year after People v. Culbreath,

343 Ill. App. 3d 998 (2003), and involved a similar situation in which

the trial court asked counsel for the parties if they wished voir dire to

be recorded by a court reporter. Both declined. Defendant was

ultimately convicted of a drug-possession offense. As grounds for his

appeal, the defendant argued that the trial court committed reversible

error by failing to have jury-selection proceedings reported as

required by Supreme Court Rule 608(a)(9) and that his trial counsel

rendered ineffective assistance by agreeing to waive the recording of

voir dire. People v. Ash, 346 Ill. App. 3d at 812.

As in all the cases which preceded it, the appellate court in Ash

found these arguments to be without merit. The court opined that the

requirements contained in Rule 608(a)(9) could validly be waived by

counsel on the defendant’s behalf and that the trial court was entitled

to rely on defense counsel’s decision to decline having voir dire

recorded. The court further held that defendant had failed to

demonstrate that his attorney’s decision to forgo recording of voir

dire deprived him of a fair trial. Defendant’s claim was based solely

on counsel’s decision to allow voir dire to proceed without a court

reporter, and in the court’s view, “[e]xcusing the court reporter from

taking notes of voir dire is not, in and of itself, ineffective assistance

[citations] or a violation of due process [citations].” People v. Ash,

346 Ill. App. 3d at 813-14.
-24-

In light of this unbroken line of precedent, which the appellate

court in this case applied properly, the majority’s characterization of

the case as unique or unusual is unfounded. The problem presented

by this case, failure to record voir dire as Rule 608(a)(9) requires, is,

in fact, all too common. Its frequent reoccurrence is perplexing.

Given the clear language of the rule, it is difficult to understand why

a trial court would suggest that conducting jury selection without the

presence of a court reporter might be appropriate or permissible. As

we held in Bright v. Dicke, 166 Ill. 2d 204, 210 (1995), and as the

majority reminds us, our rules are not suggestions. They have the

force of law, and the presumption must be that they are to be obeyed

and enforced as written. Rule 608(a)(9) is no different. If trial courts

are unwilling to comply, it is incumbent on us to amend the rule’s

provisions to include appropriate consequences for failure to follow

it. Fashioning ad hoc remedies as the majority does here is unsound,

especially where, as in this case, doing so requires the court to ignore

an unbroken line of cases dating back over 30 years.

In an effort to justify its approach, the majority attempts to

distinguish this case from past precedent on the grounds that it

involves a situation in which the failure to record voir dire is tied to

a specific claim of prejudice by the defendant, namely, that it

hampered his ability to establish that he was denied equal protection

under the principles established by the United States Supreme Court

in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712

(1986). According to the majority, remand for further proceedings is

necessary in order to dispel any notion that our court condones racial

discrimination in jury selection in contravention of Batson. Slip op.

at 14.

I share my colleague’s concern with honoring the precepts of

Batson. Contrary to the majority, however, I do not believe that this

case can properly be characterized as presenting a Batson claim. As

a preliminary matter and as the majority acknowledges, no mention

of Batson was made in either the posttrial motion filed by defense

counsel or the pro se posttrial motion submitted by defendant himself.

The suggestion that Batson considerations might be relevant was

injected into the case for the first time by defendant’s counsel on

appeal. Even then, it was not the focus of defendant’s petition for

leave to appeal, his brief or his reply brief. In fact, when defendant’s
-25-

reply brief mentions Batson, it is not to buttress any claim of racial

discrimination in this case, but merely to illustrate why defendant

believes, as a matter of policy, that strict enforcement of the court

reporting requirement in Rule 608(a)(9) is so important. When

defendant speaks of possible Batson-related problems in this context,

he refers to “a hypothetical defendant,” not himself.

Wholly aside from these considerations, I do not believe that

appellate counsel’s Batson analysis is meritorious. That there might

be an actual Batson problem in this particular case is predicated on a

document styled “affidavit” which was appended to defendant’s pro

se posttrial motion and motion to suppress confession. In that

affidavit, defendant stated:

“Judge Maher I know you tried to be fair as possible and you

was but I felt a predjudice [sic] and discrimanating [sic]

patter[n] going on with the jury. I’m not predjudice [sic] but

I strong feel some of the jury was. I mean let’s look at it

eleven white people and one black person ***.”

The affidavit then continued with the charge that the one black person

on the jury was likely to have been biased against defendant because

her brother had recently been murdered and she still carried

“emotion’s [sic] about guns and people being shot.” In addition, the

affidavit asserted that the lone black juror knew defendant and had

lied when the court asked here whether she knew anyone involved in

the case.

Along with this affidavit, defendant’s appellate counsel also cited

an allegation in trial counsel’s posttrial motion regarding the

composition of the jury. That allegation, which paraphrased

defendant’s affidavit, stated simply that

“of the twelve jurors in this cause, there was only one black

and when the court asked said black lady if she knew anyone,

either the attorneys or any of the proposed witnesses or the

Defendant she stated she did not know the Defendant but in

reality said Defendant has subsequently learned that the said

black lady did know him.”

Contrary to the majority’s view, these assertions do not echo

language in Batson. The Batson decision did not pertain to the bias

that may result from personal acquaintance. It did not even address
-26-

the bias that may result when the members of the jury happen to be

of a different race from the defendant. Rather, it was concerned

specifically with purposeful discrimination by the State in the

selection of the jury through the use of peremptory challenges. Batson

v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).

Nothing in any of the materials filed by defendant or on his behalf

in the trial court charges that such purposeful discrimination by the

State occurred here. A pattern of discrimination by the jury, which is

what defendant alleged, is analytically and constitutionally distinct

from a pattern of discriminatory strikes against black venire members

by the prosecution, which is what the defendant in Batson alleged.

Batson v. Kentucky, 476 U.S. at 83-84, 90 L. Ed. 2d at 78-79, 106 S.

Ct. at 1715-16. While it may be true that the jury ended up with 11

white jurors and only one African American, there is no indication

that this composition was the result of anything other than the

demographics of Peoria County.

To support its view that this case is properly viewed as presenting

Batson concerns, the majority asserts that “the State does not dispute

that defendant’s complaint about the racial composition of his jury

was a Batson claim.” Slip op. at 9 n.4. The majority’s implication is

that the State, in its brief, somehow conceded that arguments

advanced by defendant and his attorney in the trial court were

predicated on Batson. The State made no such concession. So far as

I can tell, the question of Batson is not even mentioned in the State’s

brief. It did not need to be mentioned because it was not essential to

the State’s arguments in support of the trial court’s judgment.

In addressing the question of why Batson was not specifically

raised in the trial court, my colleagues fail to consider an obvious

explanation, namely, that counsel recognized that no grounds for a

Batson challenge existed. Instead, the majority intimates that

defendant’s trial counsel refrained from invoking Batson out of

concern that doing so would have required him to argue his own

ineffectiveness. I regard such a suggestion as wholly unjustified.

Rather than assuming that an attorney’s representation was tainted by

self-interest or otherwise flawed, we must assume, absent evidence

to the contrary, that counsel satisfied his professional obligations.

Indeed, there is a strong presumption under Illinois law that the

performance of a defendant's attorney fell within the range of
-27-

reasonably adequate representation. People v. Owens, 129 Ill. 2d 303,

318 (1989). My personal experience has been that such a presumption

is justified, particularly when defense counsel is as experienced as

defendant’s trial counsel was in this case.

When counsel in this case acquiesced in dispensing with a court

reporter for voir dire, they did so with the understanding that the

reporter would be available in the event that a problem arose

requiring that a record be made. Had the State’s exercise of its

peremptory challenges raised a Batson issue, there is no reason to

believe that defendant’s lawyer would not have exercised this option

and summoned the reporter to record the proceedings. Based on the

record before us, it appears that he was diligent in all other aspects of

his representation. That he did not deem it necessary to call in the

reporter to make a record of what occurred during voir dire is

therefore not evidence of lack of effective representation. It is

evidence of lack of error.

Finally, I am puzzled by the remedy fashioned by my colleagues.

That is so for three reasons. First, remanding for a hearing to

reconstruct what took place during voir dire is not a resolution

defendant himself has requested. Indeed, in his reply brief defendant

contends that anything less than a full recording of the voir dire,

which was not made and does not exist, will be inadequate. Second,

to the extent that a record of what took place could be reconstructed,

the time to attempt such reconstruction was immediately after the trial

concluded. As noted in McClurg, Morris, and Culbreath, our rules

provide for alternate means for preserving the record, and if a

defendant fails to avail himself of those alternatives he cannot

complain on appeal that the failure to provide a court reporter during

voir dire constitutes reversible error. Third, even if some principle of

justice could excuse defendant’s failure to act earlier, the passage of

time has probably doomed any realistic hope of reconstructing the

record of voir dire now. As a result, the remand ordered by the

majority is, in the end, likely to be a meaningless act. The case is

almost certain to return to us in essentially the same posture as it is

now. What then? Nothing in the majority’s present analysis explains

what the next step should be.

For the foregoing reasons, I believe that the majority’s analysis is

unsound and that the remedy it fashions is ill conceived. In my view,
-28-

the appellate court resolved this case correctly under the law.

Although the majority did not reach defendant’s remaining issue

pertaining to counsel’s failure to tender an instruction on

identification, I believe that the appellate court resolved that issue

correctly as well. The appellate court’s judgment should therefore be

affirmed. Accordingly, I respectfully dissent.